PROPOSED CHANGES TO THE FMLA
The Department of Labor recently issued a Notice of Proposed Rulemaking advising that it is considering changing the definition of “spouse” under the Family & Medical Leave Act (FMLA). Currently the FMLA provides eligible employees with up to 12 weeks of unpaid time off work to care for their own serious health condition or to care for certain family members, including spouses, who have a serious health condition. The FMLA also provides eligible employees time off to care for injured service members and to address issues related to military deployment.
As written, the FMLA defines spouse as “a husband or wife as defined or recognized under state law for purposes of marriage in the state where the employee resides, including ‘common law’ marriage and same-sex marriage.” Under this definition, a same-sex spouse may only obtain the benefit of the FMLA to care for his or her spouse if their marriage is recognized in the state where they currently live. Individuals married in a lawful ceremony in a state where same-sex marriage is recognized might not be able to take advantage of leave under the FMLA to care for their spouse if they live in a state where same-sex marriages are not recognized.
To fix this inequity, the Department of Labor has proposed revising the definition of spouse to refer to the state in which the marriage was celebrated, instead of where the spouses reside. Thus, if the marriage was celebrated in a state in which same-sex marriage is recognized, the employee will be eligible for FMLA benefits.
Craig Henry PLC fully supports this proposed change to the FMLA’s definition of spouse and the Department of Labor’s efforts to ensure equality regardless of sexual orientation.